The EU’s disastrous Copyright Reform, explained by its lovers and haters

The EU’s extremely controversial Copyright Reform — which might introduce upload filters, ancillary copyright, and restrictions on text and data mining — will finally go to a vote on June 20.

It’s not certain how the vote will go as members of the European Parliament (MEPs) are still split on key articles of the reform, but whatever the conclusion will be, it’s certain that it’ll greatly affect the future of the internet in the EU and beyond. The result will form the EU Parliament’s stance on copyright and will have huge implications for the final stage of the law making process.

TNW spoke the most fervent supporters and opponents of the bill, both inside and outside the EU to better understand what’s at stake on June 20.

Background — What you need to know about the Copyright Reform

The EU’s current copyright law is from 2001, pretty much predating the real internet era. That’s why everyone involved — businesses, politicians, citizens — agreed that the new Copyright Reform was needed to make it work for the digital age. However, settling on a final version has proven difficult.

The most contested parts of the Copyright Reform are — and always have been — articles 11 and 13; the former concerns ancillary copyright and link tax, while the latter deals with uploading filters and censorship machines. Also 3, but for the sake of brevity we won’t be discussing it in this article; you can read about its disastrous effect on AI startups here and here.

Article 11, a.k.a. link tax, would force anyone using snippets of journalistic online content to get a license for the publisher first — essentially outlawing current business models of most aggregators and news apps.

Article 13, a.k.a. censorship machines, will make platforms responsible for monitoring user behavior to stop copyright infringements, but basically means only huge platforms will have the resources to let users comment or share content.

Unlucky number 13

“I think article 13 is the biggest threat to the internet as we know it right now,” Raegan MacDonald, Senior Policy Manager and EU Principal at Mozilla, told TNW. For her, the severity of how badly the articles will impact our internet is in reverse order: 13, 11, and 3.

Article 13 will hold platforms responsible for any content that their users upload, meaning that the platform is liable if there’s copyright infringement. For MacDonald, this threatens the continuation of a healthy and open internet, partly because how broad the definition is in the proposal.

“The way this article is drafted, it kind of assumes that it’s being specific while it’s being extremely broad. So it’s not just about audio/visual content, it’s about all types and forms of copyright. It would be including lots of type of different content, even code sharing.”

MacDonald says because all platforms will be legally liable for the actions of their users, it will force them to create incredibly sophisticated upload filters (or ‘censorship machines’) because it would be the only way to completely prevent possible copyright infringement. MacDonald explains that this is an impossible request.

“Even Content ID — YouTube’s automated filtering that they have made themselves with cutting edge machine learning technology and have honed and improved over the last 11 years — is still utterly imperfect. It’s still incredibly flawed when it comes to perfectly detecting copyright infringement.”

It won’t go unnoticed by people if article 13 ends up becoming law, according to MacDonald. There isn’t a clear fair use clause in the reform so MacDonald fears that parody, satire, and even protest videos at risk as they could get caught up in and removed by such filters. Therefore we might see a lot of legitimate speech censored.

“Article 13 will be the most tangible change for citizens. What the average internet user will see is a lot of changes in the way their open platforms function — on comment sections, on coding platforms, on basically everything where copyrighted content could be,” says MacDonald.

She adds that this will particularly affect smaller platforms who’ll have a harder time meeting the new criteria. But does that mean that the reform might end up mostly benefiting big corporations?

I’d say ‘yes.’ This is one of the most frustrating aspects because in Brussels, in the midst of this ‘techlash’ where policy makers are increasingly concerned about the amount of power and of control that a handful of large platforms have over our data, over the ability of other companies to enter the market, etc.

This copyright reform would give even more control to these handful of platforms. And I think because of the legal liability — that essentially every open platform would now have to shoulder — we’ll get way fewer platforms. The biggest companies, which have an army of lawyers and are able to bear some legal risk, will be the only able to run these type of platforms.

Article 11’s link tax is also worrying because — just as article 13’s censorship machines — it would make market entry and competition more difficult in MacDonald’s mind. Article 11 is also problematic due to its vagueness and the inclusion of a clause that allows member states to make their own adjustments to it.

“I think there would be a whole lot of confusion. I think there’ll probably be a lot of negative implications that we haven’t even thought of right now because the system is so confusing and so ill thought out. There’s no upside to it. I think we’ll see a lot of damaging effects there.”

Article 11 was presented as a way to help publishers fight back against tech giants and news aggregators, basically forcing companies like Google and Facebook to pay publishers for the content that draws people to their platform. This might seem like lofty goals, but MacDonald believes that copyright is being used in a proxy battle over the internet and that European politicians don’t truly understand what copyright is about:

Copyright is supposed to stimulate and support creators, it’s supposed to encourage innovation, and benefit the public good. But what this proposal and article 11 and 13 in particular has been about is a complete misunderstanding of what copyright does.

It is not supposed to be for a narrow part of an industry to control a handful of platforms, or to regain 100 percent of the market access and distribution of copyrighted content. It is not to turn back the time.

Axel Voss, Rapporteur of the European Parliament for the Copyright Directive is the man leading the charge for the new copyright proposal. He firmly believes that the proposed reform will greatly benefit European citizens and publishers, despite the criticism of the opposition, both outside and inside the EU.

“I feel that the criticism hasn’t been really balanced and not based on the actual text we’ve proposed,” Voss told TNW. “That’s why all these claims of censorship, upload filters, and link tax are all a total exaggeration.”

Voss points out that there’s no mention of upload filters in the proposal and that it’s simply making it mandatory to prevent copyright infringement from happening in the first place, something which is already existent in EU law.

Julia Reda, a staunch opponent of the proposal, said in an email to TNW that article 13 clearly forces platforms to filter content. Even though there aren’t explicit references to technologies to ensure the filtering, Reda points out that there’s still mentions of “effective technologies” that platforms need use to prevent copyright infringement, in addition to the obligation to get license agreements. Reda told the following to TNW:

Obviously, it is impossible to predict what copyrighted material users will upload in the future, and the proposal is in no way limited to particular types of copyrighted content. That means that in order to comply with the law, platforms would have to obtain a license for each of billions of copyright-protected works in the world, because they might be uploaded in the future and the platform would be liable for copyright infringement as soon as the material would become available.

As this is impossible for even the largest platform, operators will have no choice but to try to mitigate their liability through automated filters.

There is a great divide between supporters and opposers of the reform in regards to who it really benefits. MacDonald, Reda, and others say it will greatly favor tech giants but Voss says that they are in fact against the new reform.

“Censorship machines is not what we intend to implement and no one in the European Parliament wants that. I consider this to be a campaign run by some of my colleagues in the European parliament together with the big tech companies who might not appreciate a proposal like this.”

Voss also adds that the current line of criticism doesn’t take into account the compromises that have been made. For example, the definition of platforms has been altered so that probably around 80 percent of platforms wouldn’t be affected by article 13. The aim is to target platforms that make money off unlicensed copyrighted content — that’s why platforms like Wikipedia, eBay, Dropbox, and Tinder won’t be affected.

The new version of article 2.4a can be seen here:

(4a) ‘online content sharing service provider’ means a provider of an information society service one of the main purposes of which is to store and give access to the public to copyright protected works or other protected subject-matter uploaded by its users, which the service optimises.

Services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all concerned rightholders, such as educational or scientific repositories, should not be considered online content sharing service providers within the meaning of this Directive.

Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive.

Reda says Voss misrepresents the true scope of the upload filtering obligation and at no point does the definition exclude platforms that don’t make money off their users’ sharing of copyrighted content. She concedes that “completely non-commercial platforms” are excluded, but points out that experience has shown that even a call for donations or the use of an advertising banner can be considered commercial activity:

It is therefore not even certain that a donation-based community project like Wikipedia would be excluded from the obligation to filter. Aside from this exemption for entirely non-commercial platforms, there is no limit to a particular business model of platform.

It is clear that for example Tinder would fall under the definition, because one of its main purposes is to show pictures to its users and it optimises the uploaded content by displaying it in a particular way that allows users to swipe right or left. Nevertheless, it would be a stretch to claim that Tinder makes money off the backs of photographers. The business model is not a factor in the definition at all.

Reda also disagrees with Voss’ assessment of how many platforms will be affected by article 13 and believes it will have serious repercussions for the internet.

“In a recent interview with German TV, Mr. Voss conceded that he is not even sure whether Facebook would fall under the definition, although the definition was supposedly tailored to particularly cover platforms such as YouTube or Facebook. Instead it will cover a broad range of perfectly legitimate businesses that do not harm authors in any way, from language-learning apps where users can share their vocabulary learning aids, to travel apps such as TripAdvisor or multi-purpose website environments like WordPress.”

Voss and Reda are also at odds when it comes to article 11 on ancillary copyright and link tax. Voss feels the article is necessary to ensure the independence of publishers and to make sure news aggregators and tech companies fairly compensate publishers for their intellectual property.

“This increased right of publishers is what we need to maintain a democratic structure, to ensure independent press. If the press is dependent on search engines, of powerful companies, then we simply don’t have an independent press any longer,” says Voss.

He emphasizes that the effects of article 11 have been exaggerated and that it won’t destroy the hyperlink. Voss also says that one of the reasons why similar legislation failed in Spain and Germany (as MacDonald mentioned) is that news aggregators and big tech companies like Google could just circumvent it by dealing with publishers in other EU countries. The new Copyright Reform, however, will have the intended effect because all EU countries will be part of it.

“Of course it might happen that one of the big tech companies would say that they’ll exclude all Europe if they have to pay,” says Voss. “They can absolutely do that if they don’t want to pay for European content. Then they can stick with publishers like Russia Today and China Daily.”

Reda does not agree with that interpretation of article 11 and points out that Voss’ proposal doesn’t exclude news items or parts thereof that aren’t protected by copyright from the scope of the neighboring right:

For example, the sentence ‘Angela Merkel meets Theresa May,’ which could be a headline of a news article, cannot be protected by copyright, because it is a mere statement of fact and not an original creation. Mr. Voss said repeatedly that he wants these purely factual statements to be covered by Article 11, that the protection granted to press publishers will therefore be much broader than even what the journalists themselves get.

The only purpose of this broad right is to limit the ability to link. Anything else, such as ripping off entire articles or large parts of them, is already illegal under copyright law today.

While people like Reda and MacDonald say that the Copyright Reform will be disastrous for citizens and the internet as a whole, Voss and supporters of the proposal firmly stand by the claim that it will benefit all citizens, not just publishers.

“I can’t see how this can negatively impact citizens,” says Voss. “They still have their freedom of information, they probably won’t be able to get all news on one website, but they can access it on the publishers’ websites. They can basically do whatever they want — link, copy, etc. — but only for private purposes. I don’t see a real disadvantage for anybody.”

The pivotal vote will take place on June 20 and will set the tone for the last stage of the legislation process. If you’re a European citizen and you feel strongly on this matter, you can contact your MEP and make your voice heard.